Constitutions in Western democracies are based on a principle perfectly expressed by the Latin phrase “Non rex est lex, sed lex est rex” (lat., The King is not the law, but the law is king). For years, Georgia tried hard to set the same framework by changing the country’s main legislative document, but instead of settling the superiority of the law, it was used to strengthen the superiority of particular political groups.
The current government’s constitutional reform is highly criticized by various actors for being a unilateral decision not backed by society and lacking a common agreement among political actors. Some say it may even trigger the worsening of domestic processes, though, generally, this is a false statement. In fact, the reform is a continuation of Georgia’s never ending “perestroika” and will not significantly change the environment, due to problems with political willingness rather than with the constitutional amendments themselves.
What is it all about?
Georgian “perestroika” is a process of re-shaping and re-building state institutions, laws and other things to improve on the “misdeeds” of the previous government. Predictably, every political group wants to make the country better than it was, but the local scenario is complex. According to well-established Georgian political tradition, every predecessor is “corrupt” in the eyes of the current power holder, and the “perestroika” frequently means the demolishing and abandonment of pretty much everything that was initiated before. So far, Georgia has been stuck in a close circle of rarely useful never-ending reforms. The constitutional changes perfectly reflect this paradox. Every government sees flaws in it and is highly motivated to make respective amendments to the document, forgetting the importance of political willingness to give up the reins of power and decentralize power vertically. Briefly, the political elite would like to make a better Constitution but are not ready to lose seats in parliament to do so. Logically, this is hardly manageable in real life. So, amendments are made but the political situation remains unchanged and the process starts all over again.
The current constitutional reform process is so frequently discussed by various actors in a negative way that it is natural to share the popular assumption that something really bad is happening; something that will undermine Georgia’s democracy and institutional stability. In fact, it is a misleading assumption based on two false statements regularly used by the political opposition and a number of local non-governmental actors.
The first argument expressed by NGOs is that there was never a demand for constitutional change, but as the government initiated the process, it must be dealt with in accordance with democratic standards. Since the first Constitution was approved in 1995, Georgians were and are too busy with everyday challenges such as unemployment, poverty, elite corruption, military conflicts and occupation to focus particularly on this comparatively less important issue. Furthermore, there is no survey where “constitutional reform” is even mentioned by interviewees. For years, political elites have been making amendments based on their own initiatives and positioning rather than decisive demands from the electorate.
Secondly, Georgia’s strategic partners are worried by the absence of a common agreement on a variety of issues among the government, political opposition and civil society regarding the reform. There is an assumption that the unwillingness of the ruling party to cooperate and take into account critical suggestions undermines legitimacy of the process in general. We need to remind ourselves of some statistics, here. During the first years of the post-Revolutionary government, both executive and legislative bodies were under the total control of Mikhail Saakashvili and his United National Movement. From 2004 to 2008, the ruling party had 135 seats in Parliament, while the political opposition had just 15. The situation worsened when, in 2008, only 11 seats were occupied by members of the non-ruling party. In the first months of his governance, Saakashvili managed to make at least 40 amendments to the Constitution, transforming the country into a super-presidential system with no checks or balances.
Finally, the 2010 reform that gave Georgia a parliamentary model raised fears that Saakashvili was going to repeat the so-called Putin-Medvedev scenario (a case when, after two-terms of presidency, Vladimir Putin replaced Dmitry Medvedev in the position of Prime Minister, thus de-facto keeping his grip on power). These changes were mostly made without serious panel discussions with either the political opposition or civil society. And still, there were no doubts about the legitimacy of the regime or Constitution. It should be added that the 2012 parliamentary elections allocated 65 seats to the political opposition while the last one: 35.
The Georgian Constitution has been a subject for continuous reforms for years; and, frequently, the ruling party has the tendency to use its constitutional majority to unilaterally pass amendments that they believed were important or even crucial despite there being no demand for these particular changes nor any general agreements to do so among local actors. Georgian Dream is trying to ensure, as every single political force has before them, that the electoral system is government-friendly. But this process is in accordance with the established practice. There are no significant aberrations that raise concerns that the political environment in the country will get better or worse purely due to these amendments.
Finally, we need to keep in mind that constitutional reform in Georgia was never about superiority of the law over politics, but rather about the superiority of politics over this law; and by changing the country’s main legislative document, local political elites inform other actors that a new boss has arrived and “perestroika” is coming. It is a state of condition when “rex” (lat., king, or the constitutional majority in our case) is “lex” (lat., law) and not vice versa.